Major Second Circuit Decision On Reasonableness Review

No sooner than did I complete my prior post than did I discover that the Second Circuit today issued a major opinion on reasonableness review. Specifically, the Second Circuit considered the following questions and made the following determinations (all internal citations have been omitted):

1. Does the Second Circuit possess statutory authority to review a sentence within the relevant Guidelines range for reasonableness? Yes. The Second Circuit held that "when a defendant challenges the procedures of his sentencing proceeding or the reasonableness of the sentence imposed, he effectively claims that the sentence, whether a Guidelines sentence or a non-Guidelines sentence, was 'imposed in violation of the law,' 18 U.S.C. § 3742(a)(1). We therefore have authority to review sentences, whether Guidelines sentences or non-Guidelines sentences, for reasonableness." This "puts to bed" for the Second Circuit that which the DOJ has been advocating nationwide -- that appellate courts have no jurisdiction to review within Guidelines sentences.

2. Is a sentence within the relevant Guidelines range entitled to a presumption of reasonableness? No. The Second Circuit held that "[w]e recognize that in the overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad range of sentences that would be reasonable in the particular circumstances. Nonetheless, we have expressed a commitment to avoid the formulation of per se rules to govern our review of sentences for reasonableness. We therefore decline to establish any presumption, rebuttable or otherwise, that a Guidelines sentence is reasonable. Although the Guidelines range should serve as 'a benchmark or a point of reference or departure,' for the review of sentences, as well as for their imposition, we examine the record as a whole to determine whether a sentence is reasonable in a specific case. Accordingly, we do not hold that a Guidelines sentence, without more, is 'presumptively' reasonable."

Interestingly, this instruction applies to the Second Circuit as well as district courts. And, while some of the language concerning the Guidelines may at first glance seem somewhat troubling, it really is no different than that which the Second Circuit set forth in Crosby and that which the Second Circuit says in unpublished opinions considering the reasonableness of sentences imposed at the district court level.

3. Does 18 U.S.C. § 3553(a)(6), which obliges sentencing judges to consider unwarranted disparities in sentencing, apply to differently situated defendants? No. The Second Circuit held that "a disparity between non-similarly situated co-defendants is not a valid basis for a claim of error under 18 U.S.C. § 3553(a)(6)" and concluded that that provision "relates only to 'unwarranted' disparity between similarly situated defendants." The Second Circuit, however, in a footnote specifically declined to consider the question of whether "similarly situated defendants" under § 3553(a)(6) means similarly situated co-defendants or similarly situated defendants nationwide -- an important outstanding issue that the Second Circuit will eventually have to resolve.

4. Does the duty to consider the sentencing factors of 18 U.S.C. § 3553(a) requires a sentencing judge to discuss on the record during the sentencing proceeding each of the factors or each argument that a defendant makes relating to those factors? No. The Second Circuit held that, although a sentencing judge is required to put the Guidelines calculation on the record, there is "no similar requirement that a sentencing judge precisely identify either the factors set forth in § 3553(a) or specific arguments bearing on the implementation of those factors in order to comply with her duty to consider all the § 3553(a) factors along with the Guidelines range. Consideration of the § 3553(a) factors is not a cut-and-dried process of factfinding and calculation; instead, a district judge must contemplate the interplay among the many facts in the record and the statutory guideposts. That context calls for us to 'refrain[] from imposing any rigorous requirement of specific articulation by the sentencing judge.' . . . Accordingly, we presume, in the absence of record evidence suggesting otherwise, that a sentencing judge has faithfully discharged her duty to consider the statutory factors. In other words, no 'robotic incantations' are required to prove the fact of consideration, and we will not conclude that a district judge shirked her obligation to consider the § 3553(a) factors simply because she did not discuss each one individually or did not expressly parse or address every argument relating to those factors that the defendant advanced."

5. Can a sentencing judge take a defendant's cooperation with authorities into account under 18 U.S.C. § 3553(a) even if the Government has not made a § 5K1.1 downward departure motion? Yes. This is a major development, in which the Second Circuit coins the phrase "non-5K cooperation." The Second Circuit held that the power to consider such cooperative efforts resides in 18 U.S.C. § 3553(a)(1), "even if those efforts did not yield a Government motion for a downward departure pursuant to U.S.S.G § 5K1.1" -- which the Second Circuit then defines as "non-5K cooperation." Specifically, the Second Circuit held that 18 U.S.C. § 3553(a)(1) is "worded broadly" and "contains no express limitations as to what 'history and characteristics of the defendant' are relevant. This sweeping provision presumably includes the history of the defendant's cooperation and characteristics evidenced by cooperation, such as remorse or rehabilitation."

Although it unlikely that many district court judges will avail themselves of the opportunity to impose a non-Guidelines sentence based on non-5K cooperation, this finding by the Second Circuit does open the door for arguments on behalf of defendants who, for example, may have offered cooperation that the Government for one reason or another declined and for defendants who entered into cooperation agreements with the Government that were subsequently terminated because of a violation of the terms of such agreements.